[GTALUG] Addressing one of our longest-standing legal problems
David Collier-Brown
davec-b at rogers.com
Mon Jun 25 10:05:22 EDT 2018
Many moons ago, ISPs were concerned that they would be legally required
to eavesdrop on their customers, and the GTALUG board spun off a group
to follow and comment on legalistic and political matters.
The posting below is specifically about misbehavior by Telus, but it's
also a potted history of the improvement of the situation in Canada over
time, and over the US, where stored communications cab be seized without
a warrant.
--dave
[This is a resend: the first one was too big]
-------- Forwarded Message --------
Subject: Telus Texts Not Intercepted When Stored
Date: Mon, 25 Jun 2018 03:37:59 +0000
From: Omar Ha-Redeye <>
http://www.slaw.ca/2018/06/24/telus-texts-not-intercepted-when-stored/
Telus Texts Not Intercepted When Stored
Many Canadians confuse the law when it comes to recording telephone
conversations, likely due to exposure to American concepts in the media.
Although the Wiretap Act of 1968 (18 U.S.C. § 2511) contains a one-party
consent rule, a dozen states have a two-party consent that supersedes
American Federal law, and given its presence in California (Cal. Penal
Code § 632), it’s likely that this is often the source of the
misunderstanding in Canada.
In Canada, we have Part VI
<https://qweri.lexum.com/w/calegis/rsc-1985-c-c-46-en#%21fragment/PART_VI_Invasion_of_Privacy_779805/KGhhc2g6KGNodW5rxIVhbsSHb3JUZXh0OlBBUlRfVklfSW52xIJpb25fb2ZfUHJpxKFjeV83Nzk4MDUpLG5vdGVzUXVlcnk6Jycsc2Nyb2xsQ8SIxIo6IW7FhmVhcsSHxL7FgMWCxYTFk8WVxIdTxJB0QsWCUkVMRVZBTkNFLHRhYjp0b2MpKQ==>
of the Criminal Code, which states,
Consent to interception
*183.1* Where a private communication is originated by more than one
person or is intended by the originator thereof to be received by
more than one person, a consent to the interception thereof by any
one of those persons is sufficient consent for the purposes of any
provision of this Part.
An unauthorized interception is subject to an indictable offence, and
serves to protect against the invasion of privacy. These provisions are
also applicable to law enforcement, limiting the ability of the police
to eavesdrop into the conversations of Canadian citizens.
The Court in /R. v. Duarte / <http://canlii.ca/t/1fszz>explained the
rationale for this as follows,
The rationale for regulating the power of the state to record
communications that their originator expects will not be intercepted
by anyone other than the person intended by the originator to
receive it (see definition section of Part IV.1 of the/ Code/) has
nothing to do with protecting individuals from the threat that their
interlocutors will divulge communications that are meant to be
private. No set of laws could immunize us from that risk. Rather,
the regulation of electronic surveillance protects us from a risk of
a different order, i.e., not the risk that someone will repeat our
words but the much more insidious danger inherent in allowing the
state, in its unfettered discretion, to record and transmit our words.
The reason for this protection is the realization that if the
state were free, at its sole discretion, to make permanent
electronic recordings of our private communications, there would be
no meaningful residuum to our right to live our lives free from
surveillance. The very efficacy of electronic surveillance is such
that it has the potential, if left unregulated, to annihilate any
expectation that our communications will remain private. A society
which exposed us, at the whim of the state, to the risk of having a
permanent electronic recording made of our words every time we
opened our mouths might be superbly equipped to fight crime, but
would be one in which privacy no longer had any meaning. As Douglas
J., dissenting in/ United States v. White/,/ supra/, put it, at p.
756: “Electronic surveillance is the greatest leveler of human
privacy ever known.” If the state may arbitrarily record and
transmit our private communications, it is no longer possible to
strike an appropriate balance between the right of the individual to
be left alone and the right of the state to intrude on privacy in
the furtherance of its goals, notably the need to investigate and
combat crime.
There are several mechanisms through which law enforcement can obtain
this information. The first is through a wiretap under a Part VI
authorization, which can include a general wiretap authorized under s.
185 and 186, a wiretap with consent under s. 184, and an emergency
wiretap under s. 184.4 and 188. The latter two do not require full
judicial authorization, but a reasonable belief is required that a
specific offence has been, is being, or is about to be committed. Police
are required to have reasonable and probably grounds to believe that the
target of the wiretap will be engaging in a particular communication
that will provide evidence for an investigation.
A less common way to obtain communications information would be through
using a Production Order under
s. 487.012<https://qweri.lexum.com/calegis/rsc-1985-c-c-46-en#%21fragment/sec487.012> of
the /Criminal
Code<https://qweri.lexum.com/calegis/rsc-1985-c-c-46-en>/ (now
s. 487.014 ,
<https://qweri.lexum.com/calegis/rsc-1985-c-c-46-en#%21fragment/sec487.014>following
Bill C-13: Protecting Canadians from Online Crime Act 2014). A
Production Order has a much less stringent requirements than a Part VI
authorization, but its use is limited by the technological practices
employed by different telecommunication companies.
The Court in /R. v. Marakah /
<https://www.canlii.org/en/ca/scc/doc/2017/2017scc59/2017scc59.html>confirmed
last year that both sent and received text messages can potentially
attract a reasonable expectation of privacy, and therefore receive s. 8
/Charter /protections. The companion case of /R. v. Jones
<http://canlii.ca/t/hp63x> /examined the use of a Production Order to
obtain some text messages given the privacy expectations that text
messages should receive.
The police in this case were able to obtain incriminating text messages
because the service provider here, Telus, maintained a copy of sent and
received texts on their servers for service purposes. The obtained
several Production Orders against other service providers as well, but
because they did not store the texts in this way they could not be
provided to the police. They are legally entitled to do so under an
exception in s. 184(2) of the /Code. /
The significance of this unique practice was highlighted in the Court’s
2013 decision in /R. v. TELUS Communications Co. /
<https://www.canlii.org/en/ca/scc/doc/2013/2013scc16/2013scc16.html>where
the Court stated,
[59] The fact that Telus stores its subscribers’ text messages in
this manner is significant — indeed, it is the reason this appeal
exists — because it creates an investigative resource for the
authorities.
This decisions was released during the accused’s trial in /Jones/, but
the trial judge dismissed the application to re-open the s. 8 ruling.
The Court in /Jones /referred to the /TELUS /case as follows,
[44] /TELUS/ implicitly acknowledges that, as a normative matter, it
is reasonable to expect a service provider to keep information
private where its receipt and retention of such information is
incidental to its role of delivering private communications to the
intended recipient. That is intuitive. One would not reasonably
expect the service provider to share his text messages with an
unintended recipient, or post them publicly for the world to see.
Despite this reasonable expectation of privacy in the subject matter of
the texts, the Court’s analysis focused on the reasonableness of the
search itself through the use of a Production Order as opposed to a Part
VI authorization. This issue was not addressed in /TELUS/, which instead
focused on prospective production of future text messages under Part VI
authorizations for future communications.
The majority’s decision hinged on an interpretation of the provisions by
distinguishing interception and disclosure, the former requiring a
prospective application of information. A Production Order, in contrast,
was providing a copy of records that Telus had already intercepted and
stored, and had done so lawfully under the Part VI exceptions. The
majority of the Court concluded,
[77] In short, the state action in this case respected Part VI’s
distinction between the interception of communications in ss. 184 to
192 and the disclosure of previously intercepted and stored
communications as contemplated by s. 193. Based on the evidence, it
also respected the requirement in /TELUS/ that a Part VI
authorization be obtained for text messages that are still in the
transmission process. Law enforcement cannot receive authorization
to effectively intercept future communications through the
“backdoor” of the general search and seizure regime in s. 487 of the
/Code/. But law enforcement could — and did, in this case — lawfully
obtain records of historical text messages by means of a Production
Order under s. 487.012 of the /Code/ (as they can still do now under
s. 487.014).
…
[80] Production orders must therefore be carefully circumscribed to
ensure that authorized police techniques comply with s. 184(1)
<https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec184subsec1_smooth>.
A production order must not authorize, or potentially authorize, the
production of any text messages that are either not yet in existence
or are still capable of delivery at the time the order is issued.
This should be clear from the face of the order. Where the technique
at issue is an intercept within the meaning of s. 184(1)
<https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec184subsec1_smooth>,
then the application is properly rejected and a Part VI
authorization must be obtained. A production order should not be
used to sidestep the more stringent Part VI authorization requirements.
The challenge with applying this ruling is that it necessarily involves
the invasion of privacy and disclosure of information of individuals who
may not be using Telus, but are communicating with an individual who is.
Despite the lawful authorization of the mechanism in this way,
Parliament could not have envisioned the unique practices employed by a
single service provider in this manner, and the use of the statute to
benefit from it as a result.
These problems were highlighted by Justice Abella’s dissent,
[105] The only difference between /TELUS/, dealing with prospective
text messages, and this case, dealing with historical text messages,
is the timing of the state’s request for authorization. This was
reinforced by the intervener Criminal Lawyers’ Association of
Ontario in its factum where it said that, “[t]echnologically
speaking, [/TELUS/] and [Mr. Jones’] case are identical: a private
communication is made, it is then stored on the company’s computer,
and then the state acquires it” (para. 16). If the term “intercept”
in s. 183
<https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec183_smooth> is
interpreted in the context of the broader Part VI scheme and the
purpose that it is meant to serve, namely, to prevent the state
acquisition of private communications without lawful authorization
and to protect the privacy interests inherent in the content of
private communications, then the Part VI protections should not
fluctuate with the timing of the state’s interception of a private
communication. As noted in /TELUS/,interpreting the phrase
“intercept[ion] [of] a private communication” must “focus on the
acquisition of informational content and the individual’s
expectation of privacy at the time the communication was made”
(para. 36).
[emphasis added]
Highlighting the timing as the only distinction between a Part VI
authorization and a Production Order would have the effect of allowing
law enforcement to essentially create repeated Production Orders over a
period of time that would create a record similar to that of a Part VI
authorization. Although it would not have the benefit of being able to
prevent crimes from occurring, it would create the type of evidentiary
record that would have a significant effect on providing incriminating
statements against an accused, thereby having a significant impact on
the /Charter/-protected interests of the accused (the 2nd step of the
24(2) analysis under /Grant/).
More importantly, the evidence provided here did not originate from any
legal distinctions between a Part VI authorization or a Production
Order, but the unusual practices of a particular company,
[113] In this case, the police obtained several Production Orders
pursuant to s. 487.012
<https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec487.012_smooth> of
the /Criminal Code
<https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html>/ directed
at the service providers Bell, Rogers and Telus. Only Telus stored
the content of incoming and outgoing text messages for a period of
time after the messages were sent and received. No text messages
were obtained from accounts held with the other service providers.
Telus’ unique storage practices, rather than the underlying
principles in Part VI, led to the production of copies of historical
text messages from the targeted Telus account, and the loss of Mr.
Jones’ privacy protections available under Part VI of the /Criminal
Code
<https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html>/.
Again,the applicability of Part VI should depend on the substance of
what the investigative technique seeks to access, not on the timing
of when access is sought, or on the vagaries of the service
provider’s technological practices.
[emphasis added]
Justice Abella cited the evolution of shifting technology that has
resulted in corresponding jurisprudence that attempts to keep up with
the impact of these technological changes on the constitutional rights
of an accused.
The Court in /Marakah/ attempted to protect these interests by
prioritizing the private nature of text message information, and the
informational content relating to the biographical core of the
individual, rather than weighing the location of the search too heavily,
[37] Electronic conversations, in sum, are capable of revealing a
great deal of personal information. Preservation of a “zone of
privacy” in which personal information is safe from state intrusion
is the very purpose of s. 8
<https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth> of
the /Charter
<https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html>/:
see /Patrick/, at para. 77, per Abella J. As the foregoing examples
illustrate, this zone of privacy extends beyond one’s own mobile
device; it can include the electronic conversations in which one
shares private information with others. It is reasonable to expect
these private interactions — and not just the contents of a
particular cell phone at a particular point in time — to remain private.
However, this same emphasis on the private nature of the information
does not feature as prominently in evaluating the reasonableness of how
law enforcement can infringe on this zone of privacy through a search.
The unreasonableness of the search was not disputed in /Marakah/, where
text messages were used from a co-accused’s phone against him.
Instead, the majority in /Marakah /anticipate at para 53 “that the
justice system [will] adapt to the challenges of recognizing that some
text message conversations may engage s. 8
<https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth> of
the /Charter,
<https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html>/”
even as societal interests in protecting privacy interests outweigh the
state’s interest in effective law enforcement.
While this case law continues to develop, the jurisprudential gap
between Production Orders and Part VI authorizations, in light of
changing technological practices, may also warrant a review of these
provisions by the legislature to better regulate the state’s discretion
to record and transmit our words.
{picture was here}
(From Left:) Darryl Singler, Omar Ha-Redeye, Jon Rinaldi, Samatha
Biglou, and Tara Brun, judging the 2018 Lions Cup on R. v. Jones, 2017,
on June 24, 2018.
<http://feeds.feedburner.com/%7Eff/slaw/IkMK?a=99LrVPMw5RM:0O2YqRCQrGg:gCN0Ie6HRBo>
<http://feeds.feedburner.com/%7Eff/slaw/IkMK?a=99LrVPMw5RM:0O2YqRCQrGg:ACf-c_HutVc>
<http://feeds.feedburner.com/%7Eff/slaw/IkMK?a=99LrVPMw5RM:0O2YqRCQrGg:yIl2AUoC8zA>
<http://feeds.feedburner.com/%7Eff/slaw/IkMK?a=99LrVPMw5RM:0O2YqRCQrGg:I9og5sOYxJI>
<http://feeds.feedburner.com/%7Eff/slaw/IkMK?a=99LrVPMw5RM:0O2YqRCQrGg:qj6IDK7rITs>
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